People v. Delavega CA1/1

Filed 5/25/22 P. v. Delavega CA1/1
(opinion on transfer from Supreme Court)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A154936
v.
EDUARDO DELAVEGA, (Contra Costa County
Super. Ct. No. 5-170874-2)
Defendant and Appellant.
Defendant Eduardo Delavega was charged with murder and various
enhancements, including three firearm enhancements under Penal Code
section 12022.53, subdivisions (b), (c), and (d).1 The jury convicted Delavega
of second degree murder and found true the subdivision (d) enhancement, but
the verdict form did not reference the subdivision (b) and (c) enhancements.
At sentencing, Delavega asked the trial court to exercise its discretion under
Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill No. 620) to strike the
subdivision (d) enhancement, which carries a term of 25 years to life. The
court declined to do so, and it sentenced Delavega to a total term of 40 years
to life in prison. On appeal, he argues that the court erred because it refused
All further statutory references are to the Penal Code. In this
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opinion, we sometimes refer to these three firearm enhancements under
section 12022.53 by their respective subdivisions only.
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to strike the subdivision (d) enhancement on the premise that it could only
impose or strike that enhancement, not strike that enhancement and impose
a lesser enhancement under subdivision (b) or (c).
On January 15, 2021, this court issued an opinion affirming the
judgment. After reviewing a split in the Courts of Appeal involving the
circumstances under which a trial court has the discretion to impose a lesser
enhancement when it strikes a greater enhancement under section 12022.53,
we concluded that a court lacks discretion to impose a lesser enhancement
that was not separately determined to be true. Delavega filed a petition for
review in the California Supreme Court, which was granted in April 2021.
In January 2022, the Supreme Court resolved the split and held that
“[w]hen an accusatory pleading alleges and the jury finds true the facts
supporting a [subdivision (d)] enhancement, and the [trial] court determines
that . . . enhancement should be struck or dismissed under section 12022.53[,
subdivision ](h), the court may, under section 12022.53[, subdivision ](j),
impose an enhancement under [subdivision (b)] or (c).” (People v. Tirado
(2022) 12 Cal.5th 688, 700 (Tirado).) On April 20, 2022, the Supreme Court
remanded this case to us with directions to vacate our prior opinion and
reconsider the cause in light of Tirado. Delavega then filed a supplemental
opening brief and the Attorney General filed a supplemental responding
brief. (See Cal. Rules of Court, rule 8.200(b).)
We agree with the parties that under Tirado, the trial court had
discretion to strike the subdivision (d) enhancement and impose either the
subdivision (b) or (c) enhancement. Thus, we vacate our decision of
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January 15, 2021, and remand for the court to determine whether to strike
the subdivision (d) enhancement and impose a lesser enhancement instead.2
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A detailed discussion of the facts is unnecessary to our resolution of
the appeal. Briefly, however, Delavega got into a fist fight with Justin Kroh
in August 2014. Later that month, Delavega, who was then 18 years old, and
a friend were driving in Antioch when they spotted Kroh riding a bicycle on
the opposite side of the road. Delavega, who testified in his own defense,
heard Kroh ask if he was ready for another fight, and Delavega instructed his
friend to make a U-turn.
Delavega’s friend parked, and Delavega got out of the vehicle and
approached Kroh. After a brief confrontation during which Delavega claimed
Kroh pulled a knife, Delavega shot at Kroh, striking him in the head.
Delavega and his friend fled the scene, and Kroh later died of his injuries.
Delavega was charged with murder and various enhancements. One
alleged a gang special circumstance, and another alleged that Delavega
committed the offense for the benefit of a street gang.3 In addition, Delavega
was charged with intentionally discharging a firearm causing death under
2 In conjunction with this appeal, Delavega filed a petition for a writ of
habeas corpus in which he argued that his trial counsel was ineffective for
telling the trial court that it did not have the option to impose a lesser
enhancement under section 12022.53. Our prior opinion concluded that
Delavega did not thereby forfeit his claim of error, and we denied the habeas
petition by separate order. (In re Eduardo Delavega (Jan. 15, 2021,
A157982).) He did not seek review of the habeas order, and the Supreme
Court’s order in this matter does not affect it.
3 Murder was charged under section 187, subdivision (a), and the gang
special circumstance was alleged under section 190.2, subdivision (a)(22).
The other gang allegation was under section 186.22, subdivision (b)(1)(C).
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subdivision (d), personally and intentionally discharging a firearm under
subdivision (c), and personally using a firearm under subdivision (b).
Allegations were also made under section 12022.53, subdivision (e),
pertaining to firearm use during a gang-related crime.
The jury acquitted Delavega of first degree murder, rendering a finding
on the gang special circumstance unnecessary (see § 190.2, subd. (a)), but it
found him guilty of second degree murder. It also found the remaining
separate gang allegation untrue, rendering unnecessary a finding on the
firearm allegations under section 12022.53, subdivision (e) (see §§ 186.22,
subd. (b), 12022.53, subd. (e)(1)(A)). Finally, the jury found true that
Delavega “personally and intentionally discharged a firearm, . . . which
proximately caused great bodily injury and death to Justin Kroh, a violation
of Penal Code Section 12022.53(d).” The verdict form did not include
separate spaces for findings under subdivision (b) or (c) of section 12022.53 or
reference either of those subdivisions.
At the May 2018 sentencing hearing, Delavega asked the trial court to
exercise its discretion under section 12022.53, subdivision (h)
(section 12022.53(h)) to strike the enhancement of 25 years to life under
subdivision (d) and impose a total term of 15 years to life for the murder. In
addressing the request, the court agreed with Delavega’s trial counsel that it
had only “two choices, the 15 to life . . . or the 40 to life, and that’s it. There’s
no in between. There’s no splitting the difference. Those are the options that
face the Court.” Concluding that it was not “justifiable” to strike the
enhancement, the court imposed a total term of 40 years to life.
II.
DISCUSSION
Section 12022.53 establishes three sentencing enhancements of varying
lengths for the personal use of a firearm during the commission of certain
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felonies. Specifically, subdivision (b) requires a 10-year enhancement for the
personal use of a firearm during a qualifying offense, subdivision (c) requires
a 20-year enhancement if the firearm is personally and intentionally
discharged, and subdivision (d) requires a 25-years-to-life enhancement if the
firearm is personally and intentionally discharged and proximately causes
great bodily injury or death. Subdivisions (b) and (c) are lesser
enhancements of subdivision (d) in the sense that a true finding under
subdivision (d) amounts to a true finding under the other two subdivisions.
(See Tirado, supra, 12 Cal.5th at p. 696; People v. Morrison (2019)
34 Cal.App.5th 217, 222.) For any of these enhancements to be imposed, the
requisite facts must “be alleged in the accusatory pleading and either
admitted by the defendant in open court or found to be true by the trier of
fact.” (§ 12022.53, subd. (j); Tirado, at p. 695.)
Senate Bill No. 620 amended section 12022.53(h), which previously
prohibited sentencing courts from striking a firearm enhancement found true
under the statute. (Tirado, supra, 12 Cal.5th at pp. 695–696.) Effective
January 1, 2018, subdivision (h) now provides that a sentencing court “may,
in the interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise required to be
imposed by this section.” (§ 12022.53(h); Tirado, at pp. 695–696.)
The Attorney General argues in both his original and supplemental
briefing that Delavega forfeited the claim about the trial court’s application of
section 12022.53(h). Generally, “[a] party in a criminal case may not, on
appeal, raise ‘claims involving the trial court’s failure to properly make or
articulate its discretionary sentencing choices’ if the party did not object to
the sentence at trial.” (People v. Gonzalez (2003) 31 Cal.4th 745, 751.) But as
we explained in our prior opinion, at the time of Delavega’s sentencing the
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contours of a trial court’s authority under amended section 12022.53(h) were
unsettled. Thus, we would not have expected competent and knowledgeable
counsel to anticipate Tirado’s holding and ask the court to impose a lesser
enhancement under section 12022.53, and trial counsel’s failure to make such
a request is excused. (See People v. Perez (2020) 9 Cal.5th 1, 8.) Moreover,
even if Delavega had forfeited the claim, we would exercise our discretion to
decide it. (See People v. Anderson (2020) 9 Cal.5th 946, 963.) Therefore, we
again address Delavega’s claim on the merits.
Tirado decisively establishes that the trial court has the discretion to
strike the subdivision (d) enhancement and impose a lesser enhancement
under subdivision (b) or (c), since by finding the greater enhancement true
the jury necessarily found true facts supporting the lesser enhancements.4
(See Tirado, supra, 12 Cal.5th at p. 700.) In addition, it is clear the court
“ ‘proceeded with sentencing on the . . . assumption it lacked [such]
discretion’ ” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425), since the
court stated its only choices were to strike the subdivision (d) enhancement
and sentence Delavega to 15 years to life or to impose that enhancement and
sentence him to 40 years to life. And finally, the court did not “clearly
indicate[]” it would have declined to impose one of the lesser enhancements
even if it believed it had discretion to do so. (McDaniels, at p. 425.)
Therefore, a remand is required for the court to exercise its discretion as
clarified by Tirado. We express no opinion on how the court should do so.
4 Relying on People v. McDavid (2022) 77 Cal.App.5th 763, Delavega
argues that under Tirado the trial court also has discretion to strike the
subdivision (d) enhancement and impose an enhancement under
section 12022.5, subdivision (a). We agree with the Attorney General that
the claim is premature, and we need not resolve it at this juncture.
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III.
DISPOSITION
The case is remanded for the trial court to consider whether to strike
the enhancement under section 12022.53, subdivision (d), and impose a lesser
enhancement. The judgment is otherwise affirmed.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Wiss, J. *
*Judge of the Superior Court of the City and County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
People v. Delavega (On Remand) A154936
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